A recent case shows that the timeframe for submitting an unfair dismissal claim can be extended in extenuating circumstances.

An administrative assistant who missed the deadline for submitting her unfair dismissal claim has been granted extra time due to her extenuating circumstances.

Just three days prior to a pre-planned four month trip to the UK – on the 18th of September 2019 – the employee was notified that she was being made redundant, after over four years of service, due to an internal restructure following a new company acquiring the business.

Prior to the news of her dismissal, there was talk of her working remotely from the UK, which the employee believed had been signed off by her managers, but there was a lack of documentation to support this claim. The employer did consider redeployment options but came to the conclusion that there were no appropriate positions within the new structure.

Just six days prior to her dismissal the employee received a pay rise and a bonus of $2,242 – so to say her subsequent dismissal was a shock would be an understatement.

The employee says she wasn’t given enough time to come to terms with the dismissal before setting off on a long-haul flight; 48 hours had passed before she would have been able to start actioning a claim. To complicate things further, upon arrival in the UK the employee found out that her mother had been diagnosed with terminal cancer. 

Exception to the rule

According to the Fair Work Act employees have 21 days to lodge an unfair dismissal claim, not including the day of dismissal. If the final day of the time frame falls on a public holiday or weekend the date is automatically extended to the next business day. However, in “exceptional circumstances”, the FWC can use its discretion to extend the time frame.

In this particular case, an incomplete application was lodged by the employee on the 10th of October – she forgot to factor in the time difference, so this was one day late according to Australian time but just inside the deadline from the employee’s UK perspective.

She told the FWC that the form was incomplete as the supporting documents that she attached to her submission were too large to send in one email. So she sent two emails – one with her application for unfair dismissal and another with her supporting documents. The FWC only received the latter and was therefore unable to process her request.

After some back and forth the completed form was submitted on the 16th of October – seven days after the 21 day deadline.

The employee was able to provide evidence of her attempts to submit the application to the FWC and said that “under normal circumstances [she] would have looked into filing this earlier, but these were unexpected and exceptional circumstances as [she] was caring for [her] two-year-old son and struggling with the fact that [her] mum was diagnosed with terminal cancer.”

The employee’s mother died on the 13th of November. The hearing of the matter was postponed to accomodate for her mother’s funeral.

The employer’s side of things

The employer claimed the dismissal shouldn’t have come as a shock to the employee, as discussions about her role following the restructure pre-dated her dismissal date by months. 

However, it’s easy to imagine that the pay rise and the informal conversation regarding the potential to work remotely could have led the woman to believe that her position in the company was safe. The FWC agrees, saying the employee could have only been aware of her dismissal at the time it occurred.

The employer also argued that the employee relied on her mother’s illness as the reasons for her delayed response but “failed to provide any medical certificates or reports to substantiate this claim”.

To this, commissioner Leigh Jones said it was “shockingly callous” to require the employee to “submit more detailed evidence about the time commitment she made to her dying mother. Likely, and understandably, the Applicant sought to maximise her time with her mum.”

Jones added: “At least since (somewhere around) 500 to 600 BC there has been an instruction to ‘Honour your … mother’. Until [her mother’s] untimely death… the [administrative assistant] fulfilled that age-old instruction.”

The employer also argued that an unfair dismissal application is not applicable as the employee’s dismissal was the result of a genuine redundancy.

While the FWC agreed that the employer complied with its award/EBA obligations when making this employee’s role redundant, Commissioner Jones said there wasn’t enough evidence to prove the employer had made a good enough attempt to re-deploy the employee – this would require a further investigation – and therefore her unfair dismissal claim was valid and an extension was granted.

Softening the rules?

It seems that in this case the FWC was more lenient than it has been in previous cases.

“The FWC has generally taken a strict approach to out-of-time applications,” says Daria McLachlan, a senior associate at Sparke Helmore Lawyers, in a blog post on the firm’s website.

McLachlan says that, historically, for a time extension to be granted the FWC had to be convinced that an employee had been “totally incapacitated by their [own] illness”.

She refers to a 2014 case, Sutherland v Emerson Pierce, which showed a time extension being denied by the FWC because while the employee had been hospitalised during the 21 day period, and totally incapacitated during this time, he was not incapacitated for the entirety of the 21 day period. 

In a separate 2014 case, an employee with a mental health condition also had his extension request denied because the FWC held the view that if people were able to “manage normal daily activities” during the 21 day notice period, that they should be able to lodge an unfair dismissal application. In this case, the employee had organised accomodation for himself which the FWC believed was proof he was able to manage normal daily activities.

McLachlan points to some cases in 2015 which show more leniency, including an example where an employee dealing with chronic morning sickness and another with irritable bowel syndrome were allowed to submit their applications 51 and 39 days late.

“It is arguable that older case law was simplistic in its approach to the exceptional circumstances test. The FWC now recognises that chronic illness can have a variable impact on a person’s ability to undertake day-to-day tasks,” says McLachlan.

With this in mind, she warns employers that it’s crucial to have the proper systems in place to avoid these claims being made in the first place, including “clear disciplinary procedures, providing written warnings to employees and giving employees the opportunity to be heard regarding disciplinary issues.”

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